On August 14, 2014, Pro-Football, Inc. (“Pro-Football”) appealed the Trademark Trial and Appeal Board’s (“TTAB”) June 18, 2014 decision to cancel its registrations for six REDSKIN-formative trademarks. As we previously reported, the TTAB’s 2-1 decision found that those trademarks were not entitled to be registered on the basis that a “substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with [the football team’s] services” during the time period when registration was sought.

Pro-Football filed its appeal with the U.S. District Court for the Eastern District of Virginia, asserting that the TTAB’s decision violates the First and Fifth Amendments to the Constitution, and that its “decision is replete with errors of fact and law, including its failure to restrict its analysis to the relevant time frame of 1967-1990, when the registrations were first issued.”

In support for its claim under the First Amendment, Pro-Football alleges that the TTAB’s decision violates its rights on the basis that:

(1) Pro-Football’s trademarks constitute truthful, nonmisleading, lawful speech; (2) any asserted governmental interest in regulating the content of Pro-Football’s registered trademarks is not substantial; (3) because Pro-Football may continue to use its marks absent federal registrations and because federal registration does not confer any official endorsement or imprimatur, any asserted state interests would not be advanced by cancellation, and thus Section 2(a) does not directly advance any such governmental interest; and (4) Section 2(a) is more extensive than necessary, in that it prohibits registration not just o f obscene or fighting words, but of nonmisleading, lawful terms that communicate a message that some might perceive as offensive, while others might not.

As to the Fifth Amendment, Pro-Football asserts that, through its decision, the TTAB unreasonably deprived Pro-Football of its “federally granted property rights that it has relied on for almost half a century.” It also asserts that the TTAB decision violates the takings clause of the Fifth Amendment by “wholly depriving Pro-Football of its property in the form of its federal registrations for the Redskins Marks” and that Pro-Football “was not compensated by the TTAB or any other government actor for the deprivation of the Redskins Marks.”

Gibbons will continue to monitor this proceeding and provide updates of future developments.

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